Balle v Commissioner of Police

Tribunal's approach

1. Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34].

Evidence

1. In addition to the s 58 documents, I had before me material filed by the Respondent following an Order under s 59 of the Administrative Decisions Review Act 1997. The Applicant, belatedly, filed a copy of his Northern Territory firearms licence and a certificate of attainment from the Firearms and Safety Training Council dated 27 March 2020, and an undated report by Michael Kruger-Davis, a psychologist. The Applicant provided a brief statement, gave evidence, and was cross-examined.
2. The Applicant provided 13 character references: Dr Donna Burgess, dated 16 November 2020, Rachel Bailetti, dated 8 November 2020, Mark Dykstra, dated 6 November 2020, Rolph Smith, dated 29 October 2020, Susan Hudson, dated 26 October 2020, Matthew Davison, dated 23 October 2020, Jasper Claude Grievson, dated 25 October 2020, Gavin Brooks, dated 27 October 2020, Wilhelm Frank Tusel, dated 23 October 2020, Guy Patrick Vinton dated 1 November 2020, Susan Bale, 1 November 2020 (cousin), Diane-Maree Eady, undated, Marilyn Turnbull, 26 October 2020.

CONSIDERATION

1. The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

Applicant's criminal history

1. The material before me referred to the Applicant having an extensive criminal history in Northern Territory and Queensland between 1981 and 1994 - convictions including DUI, drug offences, stealing, assaulting police, offensive behaviour and illegal use of a telecom service (what the Applicant described as "dirty phone calls".
2. More recently in NSW, the Applicant was issued with a traffic infringement notice on 2 February 2020 for not wearing a seatbelt while driving. When stopped by Police, he reportedly said 'No, I don't wear them'. In his evidence the Applicant said he had had surgery and this had affected his ability to wear a seatbelt, but he was not recorded as having told the Police that when apprehended, nor did he choose to challenge the issue of the notice.
3. It was submitted on the Applicant's behalf that any inference attributed to the Applicant's offending should carry little weight given that it was a long time ago. I accept that, the Applicant has had no convictions (other than the traffic infringement) since 1994 and, in that regard, those offences are afforded little weight.

False and misleading information on the application form

1. The Respondent submitted that the Applicant had provided false and misleading information on the application form for his firearms licence signed on 28 May 2020. On that form, under the section 'H Personal History', the Applicant crossed the box 'NO' in answer to a question: Have you in NSW or elsewhere, a. Been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked? ….
2. The form also contains a declaration which states: • I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading & I certify that all the information contained in this declaration is true and correct in every detail • I agree to the NSW Police Force undertaking such enquiries as are necessary to establish that the information I have provided in relation to this application is true and correct'
3. If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240.
4. According to Queensland Police records the Applicant applied for a firearms licence in that State but it was refused on 20 March 1995 on the basis that, in Queensland or elsewhere, he had been convicted of an offence/s relating to the misuse of drugs within the preceding 5 years. As a consequence, he was not considered to be a fit and proper person to hold a licence under the Weapons Act 1990 (Qld).
5. According to Queensland Police records the rejection letter was sent to the Applicant at his home address on 23 March 1995. The Applicant however, denied that he had ever received the notification of the refusal from Queensland Police. The Applicant's evidence was that he held a firearms licence in the Northern Territory between about 1992 and 1995, until he moved to Queensland with his spouse and his mother. He said he went to the Police station in Kuranda and there applied for a Queensland drivers licence and his wife filled out a firearms application for him. He was asked why he had not followed up his application. He said he was embarrassed by his conduct in the Northern Territory and did not want to have to go to the Police and "explain himself" so he "just left it". It was not long afterwards that the Port Arthur massacre occurred and he decided not to pursue the licence. In any event, he was building up a business and did not have time for shooting.
6. The Applicant said he had completed the present application form to the best of knowledge. He agreed in cross-examination that he was not able to say whether his Queensland application had been refused or not.
7. In completing the form the Applicant agreed to the NSW Police undertaking enquiries to establish that the information he had provided in the application was correct. It could be suggested that there would be no point in attempting to conceal information such as a previous refusal. As I understand it though, the question is designed to focus Police enquiries, rather than oblige Police to undertake possibly unnecessary enquiries in every case. The convenience to Police does not detract from the obligation of an applicant to respond correctly and the heavy penalty for deliberate false information underpins this requirement.
8. The s 58 documents contain a file note of a conversation between an officer of the Firearms Registry and the Applicant on 6 October 2020 in relation to the refusal of his firearms application. The file note records the Applicant was informed that information from the NSW Police 'as well as other jurisdictions' had been reviewed in the assessment of his application. The Applicant then reportedly asked 'so everywhere else too?', which was confirmed. It is difficult to ascertain on what basis the Respondent relied on this conversation in the context of the incorrect information provided because the Applicant, by that time had already completed the application form. It may suggest that the Applicant was unaware that the answers he had given would be checked. However, I do not consider the evidence necessarily leads to a view that the Applicant knowingly made a false statement in the expectation that his response would not be tested. It may, however, be evidence of carelessness in completing the form, given that there is express consent to the information being checked.
9. The Respondent submitted that it is unlikely that in the 25 years since making the application the Applicant never followed up or made enquiries to the Queensland Firearms Registry for an update on the status of his firearms licence application; that he received no response to his application might have suggested to him that his application had been refused. Although the Applicant gave some reasons for failing to follow up, I observe that he had held a firearms licence in the Northern Territory from 1992-1995 and then had almost immediately applied for one in 1995 when he moved to Queensland. This would suggest a significant level of interest in holding a firearms licence. In those circumstances I consider it unlikely that the Applicant would not have wanted to know whether his application was successful so that he could continue to hold a firearms licence.
10. As I said recently in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner.
11. In Kogias v Commissioner of Police [2020] NSWCATAD 297 where the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years.
12. In this matter, the Applicant failed to answer correctly the clearly worded and unambiguous question of whether he had been refused in NSW or elsewhere a firearms licence. The fact that the refusal was more than 20 years ago is immaterial to answer the question which specifies no period of time, unlike some of the other questions which direct an applicant to events in the last 10 years.
13. The Applicant's solicitor referred me to Hook v Commissioner of Police [2020] NSWCATAD 250 where the applicant had responded "no" to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant's explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated and probably had not been involved much legal form-filling. His incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70. The Senior Member also contrasted the matter to Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172 (Constantin), where the applicant had knowingly concealed a Queensland conviction for armed robbery.
14. In this matter, as in Constantin, I am not satisfied that there was clear evidence of intent to deceive. I find though that it is more likely than not that the Applicant was either indifferent in providing his responses or he did not pay appropriate attention to the answer he was giving to the question.
15. Ironically, the Applicant's solicitor pointed out, had the Applicant answered 'yes' his application would not automatically have been refused on that basis alone: https://www.police.nsw.gov.au/online_services/firearms/news_and_events

Other matters

1. The Applicant said in his evidence he had not possessed any firearms since he left the Northern Territory. He said he had used firearms when he was a contractor in Kuranda when, a couple of dozen times, he was called upon to put down animals, using someone else's firearm; otherwise, he said he had not used firearms. There was no evidence that this was unauthorised use under the Queensland firearms legislation, but it is likely to be the case, given that the Applicant was unlicensed.
2. The Applicant gave evidence that he presently lives quietly on a property of about 1000 acres at the edge of a forest. Although his application included the 'genuine reason' of 'rural occupation' as well as 'recreational hunting/vermin control', the Applicant did not give an account of infestations of feral animals on his property, as may have been expected. There was no clear evidence that he actually requires a firearms licence for the purpose of managing his property.
3. Private interests are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.
4. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was also a case on the "fit and proper person" test, I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
5. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum: see also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) at [7].

Evidence of Michael Kruger-Davis, psychologist

1. Mr Kruger-Davis is not the Applicant's treating psychologist; he was engaged at the request of the Applicant's solicitor for the purpose of these proceedings. He had two telephone conferences and a video conference with the Applicant and he had read the s 58 documents. His report also does not refer to any previous medical history or medical records, and Mr Kruger-Davis relied upon the history provided by the Applicant. The Respondent was critical of Mr Kruger-Davis' report, in particular, that the report recounts the Applicant's version of events. Some of the evidence of the account provided to Mr Kruger-Davis by the Applicant was not mentioned in the Applicant's own statement prepared for these proceedings, for example, that pest destruction on his property is necessary. In particular, the report recites that the Applicant did not receive the letter of refusal from Queensland Police, and to the extent that the Applicant seeks to rely on the report to prove the existence of those facts, it is given no weight. The only examination carried out by Mr Kruger-Davis, was the Mental Status Examination, which relied on the answers given by the Applicant. The report appears to be inconsistent in that it suggests that the Applicant is genuinely remorseful for his past indiscretions including the false declaration in his firearms application. It is unclear if Mr Kruger-Davis believed that the Applicant knowingly made a false declaration and that he is remorseful for this, despite what appears to be the Applicant's denial that he received the notification of the licence refusal from Queensland Police in 1995. Mr Kruger-Davis concluded that the Applicant suffered no mental health disorders, personality or substance abuse disorders, even though no issue about the Applicant's mental health had been raised. In all, I found his report unhelpful.

Character References

1. It was submitted on the Applicant's behalf that nearly all of the referees point to the Applicant's honesty, and while they may not mention his criminal past, which is some 27 years ago, many of them did not know him then, but they are united in their praise for him now, and for the time they have known him. All have known him for at least 6 years.
2. As to Dr Turnbull's reference dated 16 November 2020, I observe that the Applicant is a 'close friend of [her] family' and has known the Applicant for at least 6 years. Although she is a clinical psychologist, it is clear her reference is given in her personal capacity.
3. The Respondent submitted that while the references refer generally to the Applicant's good character, with the exception of Mr Vinton, they do not demonstrate knowledge of the Applicant's previous convictions and therefore, they must be approached with caution and given little to no weight. Consistent with the Tribunal's reasoning in Tzoudas v Ministry of Transport [2008] NSWADT 350 at [42], and in circumstances where the referees do not articulate an awareness of the circumstances giving rise to the refusal of the Applicant's firearms licence, the Respondent submitted that these references, should be given little or no weight: per Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53], and more recently, Rose v Commissioner of Police [2021] NSWCATAD 158 at [39].
4. It was submitted on the Applicant's behalf that the offences were now so long ago that it is not unreasonable that they had not been disclosed to referees. The difficulty with this contention is that in relation to the public interest test, as embarrassing as disclosure of past offences may be, it is unfair to the referees to be asked to comment as to the Applicant's character.
5. Overall, the character references are considered in light of the underlying principles of the Act that possession and use of a firearm is a privilege and that strict controls are imposed to improve public safety. The character references do not outweigh the Applicant's history of previous convictions and the underlying principle that it is a privilege for the use and possession of a firearm.
6. It was submitted on the Applicant's behalf that he has been a "model citizen" for the last 27 years.
7. The Applicant's solicitor referred me to Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 (Green), at [72] that the Applicant bore "an almost impossible burden of proving a near-absolute negative". It was submitted on the Applicant's behalf that his criminal history is so long ago, and that there has been no offending for 27 years, yet he "bears the burden" of showing the Tribunal that he is virtually no threat to the public safety. As discussed above, there is no burden of proof in the Tribunal, but all the evidence is weighed in the exercise of the Tribunal's discretion.
8. Green was also relied on for its reference to "the overriding need for public safety". It was submitted that while there was no question that the Applicant had filled out the application incorrectly, it did not follow that, in doing so, the Applicant is someone the public cannot have trust in. It was submitted that the Tribunal should have no doubt that the Applicant can be entrusted with a firearm licence and that he poses no threat to either the public or himself.
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]

Conclusion

1. In summary, while the Tribunal can never be completely satisfied that there is no risk in an applicant having a firearms licence, in the circumstances, including those identified in the confidential evidence, I am not satisfied that it is the public interest for the Applicant to hold a firearms licence. For the reasons outlined above, the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant's application for a firearms licence.

DECISION 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2021